L K JOSHI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a writ petition under Art. 226 of the Constitution challenging a decision of the Rajasthan Public Service Commission whereby the petitioner's candidature for direct recruitment for the post of Junior Specialist in Ophthalmology was rejected. The petition raises a question regarding the interpreta-tion of Rule 11 of the Rajasthan Medical and Health Service Rules, 1963, hereinafter to be referred as "the Rules" read with the Schedule appended thereto.

(2.) THE petitioner Dr. Joshi obtained his M. B. B. S. in the year 1955. He entered Government service as Civil Assistant Surgeon on 6 9-57. He obtained the post graduate Diploma in Ophthalmology from the Aligarh Muslim University in the year 1967. He obtained his M. S. in Ophthalmology in May, 1970 On 7 9 70 the petitioner was appointed as a Junior Specialist in the speciality of ophthalmology for a period of six months. This appointment was continued by subsequent extensions from time to time. On 22-3-70 he was appoined as a Junior Specialist on officiating basis pursuant to a list prepared by a Departmental Promotion Committee in accordance with rule 24 (3) of the Rules.

(3.) THE argument of learned counsel for the petitioner, in brief, is that a person who holds a decree in Medicine and Surgery of a University established by law in India or a qualification recognised as equivalent thereto by the Government and further holds a post-graduate degree or Diploma of a University established by law in India in the specified branch of Medicine or Surgery (in the present case Ophthalmology) will be eligible for appointment, provided he has the necessary experience as mentioned in Column 5 of the relevant entry in the Schedule. That is, according to learned counsel, if the petitioner can be said to have 5 years experience in the speciality after post-graduate qualification he will be qualified. THE post-graduate qualification, according to learned counsel, that the petitioner had, was the post-graduate Diploma in Ophthalmology obtained by him from the Aligarh Muslim University in the year 1967 and thereafter, according to him, he had gained the experience in the speciality tor more than 5 years. THE argument centres round the words "after post-graduate qualification". While learned counsel for the petitioner contends that the notes below the Schedule cannot modify what is contained in R. 11 of the Rules and would be governing only what is stated in Column 4 regarding "necessary post-graduate qualification", learned Additional Government Advocate argues that both the rule as well as the Schedule appended to the Rules including the note thereunder have to be read together and harmoniously construed and if the rules are interpreted in this way then they could bear out only one meaning and it is that a candidate to be eligible must have gained 5 years experience in the speciality after he had obtained his M. S. Degree and the obtaining of the Diploma will not meet the requirements of the rules. Learned Additional Government Advocate postulates a few rules of interpretation : (1) the Schedule is to be taken to be a part of the Rules, (2) the Rules and the Schedule have to be read as a whole. In other words, the Rules should be read with the Schedule and he cites Inland Revenue Commissioners vs. Gittus (l) and Indra Bai vs. Gift Tax Officer (2) to reinforce his argument. THE relevant passage in Gittus's case (l) on which reliance is placed is as follows - "it seems to me there are two principles or rules of interpretation which ought to be applied to the combination of Act and schedule. If the Act says that the schedule is to be used for a certain purpose and the heading of the part of the schedule in question shows that it is prima facie at any rate devoted to that purpose, then you must read the Act and the schedule as though the schedule were operating for that purpose, and if you can satisfy the language of the section without extending it beyond that purpose you ought to do it. But if in spite of that you find in the language of the schedule, words and terms that go clearly outside that purpose, then you must give effect to them and you must not consider them as limited by the heading of that part of the schedule or by the purpose mentioned in the Act for which the schedule is prima facie to be used. You cannot refuse to give effect to clear words simply because prima facie they seem to be limited by the heading of the schedule and the definition of the purpose of the schedule contained in the Act. Those are the rules which I intend to apply to this case as well as I can. " In the Madras case (2) the observations are - "it is axiomatic that the statute has to be read as a whole and that the schedule to the Act is as much part of the Act as any other provision thereof Rules of interpretation even require that if an enactment in a schedule other than one merely of form contradicts an earlier clause, it is the schedule that would prevail. "